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Judge’s Failure to Properly Handle Note from Jury Was Reversible Error

The Second Department determined the trial judge’s failure to follow the proper procedure for answering a note from the jury was reversible error.  The jury sent out a note requesting a readback of alibi testimony. Just after that note was read to the jury and the parties for the first time, the trial judge read a second note which indicated the jury had reached a verdict.  Without addressing the first note, the verdict was pronounced. Defense counsel was not alerted to the contents of the first note or the judge’s intended response and was not given a chance to suggest a response before the jury was called in. a violation of CPL (Criminal Procedure Law 310.30):

A court’s ” core responsibility under the statute is both to give meaningful notice to counsel of the specific content of the jurors’ request—in order to ensure counsel’s opportunity to frame intelligent suggestions for the fairest and least prejudicial response—and to provide a meaningful response to the jury'” … . “Where the record fails to show that defense counsel was apprised of the specific, substantive contents of the note . . . preservation is not required” … . Furthermore, “we cannot assume that [such an] omission was remedied at an off-the-record conference that the transcript does not refer to” … .

Here, the jury note requested a readback of the defense witnesses’ alibi testimony. This note was read for the first time on the record before all parties and the jury. Immediately thereafter, the trial court read a second note from the jury advising that a verdict had been reached, at which point the verdict was pronounced. The trial court failed to meet its “core responsibilities” …, since defense counsel was not alerted on the record to the contents of the note and to the court’s intended response, or nonresponse, prior to calling back the jury (see id.). “[A]lthough a defense counsel who is given notice of the trial court’s intended response might be expected to object at a time when counsel had an opportunity to ask [the court] to alter course’ … counsel here had no such opportunity because he learned of the trial court’s response at the same time the jury heard it” … . The defendant was thus deprived of any opportunity to voice opposition to the trial court’s decision to pass over the first note and proceed directly to the verdict without further inquiry. People v Wiggs, 2015 NY Slip Op 05707, 2nd Dept 7-1-15

 

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Question of Fact Whether Out-of-Possession Landlord Relinquished Control of the Premises to the Extent that Its Duty to Maintain the Premises in a Reasonably Safe Condition Was Extinguished—Lease Allowed Landlord to Reenter to Inspect and Make Repairs and Improvements

The Second Department determined there were questions of fact whether an out-of-possession landlord (Marphil Realty) was liable for a dangerous condition (resulting in a fire). The lease gave the landlord the right to reenter during usual business hours in order to inspect the premises and to make repairs and improvements. Therefore there was a question of fact whether the landlord had relinquished complete control over the property such that its duty to maintain the property in a reasonably safe condition was extinguished:

“Generally, a landowner owes a duty of care to maintain his or her property in a reasonably safe condition” … . “That duty is premised on the landowner’s exercise of control over the property, as the person in possession and control of property is best able to identify and prevent any harm to others'” … . Accordingly, “a landowner who has transferred possession and control is generally not liable for injuries caused by dangerous conditions on the property” … . However, an out-of-possession landlord may be liable for injuries occurring on the premises if “it has retained control of the premises, is contractually obligated to perform maintenance and repairs, or is obligated by statute to perform such maintenance and repairs” … . Yehia v Marphil Realty Corp., 2015 NY Slip Op 05670, 2nd Dept 7-1-15

 

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Warrantless Search of Parolee’s Car by Detective Was Valid–Detective Was Effectively Functioning As a Parole Officer, Was Aware of an Arrest Warrant Based Upon Defendant’s Alleged Parole Violations, and Was Aware the Defendant, as a Parolee, Had Consented In Writing to the Search of His Person and Property

The Second Department determined the warrantless search of a parolee’s car by a detective who was exercising parole-warrant responsibilities was valid. The detective was aware of defendant’s parole violations and the related warrant for defendant’s arrest. The detective was also aware that defendant, as a parolee, had consented in writing the search of his person and property:

While a person on parole is not denied the Fourth Amendment right to be free from unreasonable searches and seizures, the status of a parolee is always relevant and may be critical in evaluating the reasonableness of a particular search or seizure. A search which would be unlawful if directed against an ordinary citizen may be proper if conducted against a parolee … . The special circumstances and close supervision that come with being a parolee must be considered when determining if a search is reasonable … .

Under the circumstances of this case, the detective’s search of the car was “rationally and reasonably related to the performance of the parole officer’s duty” by dint of the detective’s parole responsibilities as a member of the Joint Apprehension Warrant Squad … . Here, no relevant distinction exists between the detective and the defendant’s parole officer … . At the time of the search, the detective was aware that the defendant had violated the terms of his parole, that as a result a warrant had been issued for the defendant’s arrest …, and that the defendant had consented in writing to a search of his person and property. Additionally, the detective was aware that the car was registered to the defendant, the defendant had acknowledged that the car was his, and a known source had said that she had been told that the defendant had just been in the car with a gun … . People v McMillan, 2015 NY Slip Op 05702, 2nd Dept 7-1-15

 

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Company Which Contracted with County to Maintain Traffic Signals Did Not Owe a Duty to Plaintiff—Plaintiff Alleged a Malfunctioning Traffic Signal Caused an Accident in Which She Was Injured

Plaintiff alleged a traffic accident was the result of a malfunctioning traffic signal.  The defendant county had entered a traffic-signal maintenance contract with defendant Welsbach.  The Second Department determined that the contract between the county and Welsbach did not give rise to tort liability re: defendant Welsbach in favor of the plaintiff because the contract was not such that it displaced the county’s duty to maintain the traffic signal. The court explained the analytical criteria:

“[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” … . Exceptions to this general rule exist “(1) where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties[;] and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” … . Welsbach established, prima facie, that it did not owe the plaintiff a duty of care, since its limited maintenance contract with the County did not displace the County’s duty to maintain the traffic signal at the subject intersection in a reasonably safe condition and it did not launch an instrument of harm … . Watt v County of Nassau, 2015 NY Slip Op 05668, 2nd Dept 7-1-15

 

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Constructive Trust Properly Imposed—Sister, Who Was Not Included on the Original Deed Because of Credit Problems, Contributed One-Third of the Downpayment Based Upon a Promise She Would Be Added to the Deed at a Later Time

The Second Department determined a constructive trust was properly imposed on property for which the plaintiff provided one-third of the downpayment.  Plaintiff Reynida Diaz was not included on the original deed with her two sisters because of her credit history. There was an agreement among the sisters that Reynida would be added to the deed at a later time. Defendant sister refused to add Reynida to the deed. The court explained the requirements for a constructive trust:

In general, the imposition of a constructive trust is appropriate in situations when ” property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest'” … . The elements of a constructive trust are (1) a fiduciary or confidential relationship; (2) an express or implied promise; (3) a transfer in reliance on the promise; and (4) unjust enrichment … . A party must establish the elements of a constructive trust by clear and convincing evidence … .

There is no dispute that the first element, a confidential relationship, exists among the sisters …, a fact conceded by the defendant. As to the second element, the testimony of the two plaintiff sisters, the defendant, and a family friend, as well as the documentary evidence, established the existence of an express agreement among the parties at the time the subject property was purchased that Reynida Diaz would be added to the deed at some later date … . The plaintiffs also established the transfer in reliance element in that, at the time of the purchase of the subject property, Reynida Diaz had given the defendant $13,000, the same amount contributed by the defendant and the other plaintiff, in exchange for the promise of being added to the title as a co-owner at a later date … . The fourth element, that the defendant would be unjustly enriched if the constructive trust was not imposed, was also established in that the defendant had received the $13,000 from Reynida Diaz, as well as payments from her toward the monthly mortgage and maintenance of the property equal to the amounts contributed by the defendant and the other plaintiff who was on the deed to the subject property … . Diaz v Diaz, 2015 NY Slip Op 05635, 2nd Dept 7-1-15

 

 

 

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Absent a Private Right of Action Expressly Granted by Statute, An Association Created by Statute Does Not Have the Capacity to Sue

The Second Department determined a nonprofit association created by statute (Insurance Law 2130), the Excess Line Association of New York (ELANY), did not have the capacity to sue based upon the defendants’ alleged failure to comply with the Insurance Law. Only the Superintendent of Insurance can enforce the Insurance Law.  Because the legislature did not provide ELANY with a statutory private right of action, the association did not have the capacity to bring the suit:

… ELANY both lacked capacity to commence this action and failed to state a cause of action. Capacity to sue “concerns a litigant’s power to appear and bring its grievance before the court” … . Entities created by statute “have neither an inherent nor a common-law right to sue. Rather, their right to sue, if it exists at all, must be derived from the relevant enabling legislation or some other concrete statutory predicate” … Such an entity ” has no power other than that given it by the Legislature, either explicitly or by necessary implication'” … .

ELANY was created by Insurance Law § 2130. The statute gives ELANY certain duties, mostly relating to receipt of records and preparation of reports, and provides that the services ELANY performs are to be funded by a stamping fee assessed for premium bearing documents submitted to it in accordance with Insurance Law § 2118 (see Insurance Law § 2130[a], [f]). Brokers’ records are to be open to examination by ELANY and the Superintendent of Insurance (now the Deputy for Insurance; hereinafter the Superintendent) (see Insurance Law § 2118[c]; Financial Services Law § 203). ELANY must perform its functions under the plan of operation established and approved by the Superintendent and “shall be supervised by the superintendent” (Insurance Law § 2130[a]; see Insurance Law § 2130[c]). The Superintendent may impose fines and may suspend or revoke an excess line broker’s license for noncompliance with the Insurance Law (see Insurance Law §§ 109, 2105[a]). Contrary to ELANY’s contention, none of the provisions of the statute confers upon it by necessary implication the capacity to sue to enforce the provisions of the Insurance Law. Rather, the broad enforcement powers of the Superintendent, the lack of enforcement powers granted to ELANY, and the requirement that ELANY function under the supervision of the Superintendent “negate[ ] any inference of a legislative intent to confer that power” … . Excess Line Assn. of N.Y. (ELANY) v Waldorf & Assoc., 2015 NY Slip Op 05637, 2nd Dept 7-1-15

 

Question of Fact Re: Whether Dog Had Exhibited Vicious Propensities Prior to Plaintiff’s Injury Precluded Summary Judgment

The Second Department determined questions of fact about whether the dog exhibited vicious propensities prior to plaintiff’s injury precluded summary judgment in a dog bite case.  The court explained the relevant law, noting that no negligence cause of action for a dog bite exists in New York:

Aside from the limited exception …, regarding a farm animal that strays from the place where it is kept …, which is not at issue here, “New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal” … . Thus, “[t]o recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog . . . knew or should have known of such propensities” … . Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others … . “Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm” … .

Here, the plaintiff failed to establish her prima facie entitlement to judgment as a matter of law on the issue of the defendant’s liability. In support of her motion, the plaintiff submitted her deposition testimony that, although the dog had barked “aggressively” at her prior to the incident, she had never observed the dog attack any person or another pet prior to this incident. The plaintiff also submitted the deposition testimony of a neighbor who, on two separate occasions prior to the instant attack, observed the dog growl, bark, bare its teeth, and jump at a person. Significantly, the neighbor testified that the defendant was present during both of the prior incidents. However, in support of her motion, the plaintiff submitted the deposition testimony of the defendant, who maintained that, prior to the attack on the plaintiff, the dog had never attacked any person or any other dog, and had never acted threateningly toward anyone. The defendant further testified that, although the dog might have barked at times, no one had ever complained to her about the dog or reported to her that they felt threatened by the dog. This evidence demonstrated the existence of triable issues of fact as to whether the dog displayed vicious propensities prior to the plaintiff’s attack, or if it did, whether the defendant was aware of such propensities … . Ostrovsky v Stern, 2015 NY Slip Op 05654, 2nd Dept 7-1-15

 

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Declaratory Judgment Actions Seeking a Determination of the Validity of Certain Tax Assessment/Liens Were Governed by the Six-Year Statute of Limitations

Reversing Supreme Court, the Second Department determined the declaratory judgment actions seeking a ruling on the validity of certain tax assessments/liens were not time-barred and further found that, even where tax assessments are challenged as “void ab initio,” the statute of limitations (six years here) applies:

… [E]ven where a tax assessment is challenged as “void ab initio,” the action is subject to the governing statute of limitations … .

An action for a declaratory judgment is generally governed by a six-year limitations period (see CPLR 213[1]). Where a declaratory judgment action involves claims that are ” open to resolution through a form of proceeding for which a specific limitation period is statutorily provided, then that period limits the time for commencement of the declaratory judgment action'” … . The instant action could not have been brought pursuant to CPLR article 78 (see CPLR 7803), or as any other form of proceeding for which a specific limitations period is provided. Therefore, the six-year limitations period is applicable … . Town of Hempstead v AJM Capital II, LLC, 2015 NY Slip Op 05663, 2nd Dept 7-1-15

 

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Property Was Not Transferred Until Escrow Conditions Were Met—Appellant Did Not Own the Building Where Plaintiff Slipped and Fell Because the Escrow Conditions Were Not Met and the Deed Was Not Released from Escrow Until the Day After the Slip and Fall

Reversing Supreme Court, the Second Department determined appellant did not own the property on the day plaintiff slipped and fell. The “preclosing” on the sale of the property to appellant took place on the day of the accident. But the deed was held in escrow until the escrow conditions were met on the day following the accident. Therefore the property was not transferred to the appellant until the day after the accident:

“When a deed is delivered to be held in escrow, the actual transfer of the property does not occur until the condition of the escrow is satisfied and the deed is subsequently delivered to the grantee by the escrow agent”… . Here, the appellant established its prima facie entitlement to judgment as a matter of law by submitting proof that the actual transfer of the property to the appellant did not occur until the conditions of the escrow were satisfied and the deed was thereafter released by the escrow agent on [the day after the accident]. As a result, the appellant demonstrated that it did not own or otherwise control the subject property on the date of the plaintiff’s alleged accident … . Camac v 550 Realty Hgts., LLC, 2015 NY Slip Op 05631, 2nd Dept 7-1-15

 

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Motion to Intervene by Members of a De-Certified Class Should Have Been Granted—Class Members Allowed to Sue In Their Individual Capacities

The Second Department determined the motion to intervene by plaintiffs and 167 residents in a de-certified class action alleging environmental damage resulting from emissions from defendant’s (BNL’s) lab should have been granted. The action began as a class action suit which was dismissed without prejudice. Then, in accordance with CPLR 1013, the individuals in the class brought a motion to intervene accompanied by a complaint which was denied by Supreme Court.  The Second Department held the motion to intervene should have been granted and further held that the statute of limitations had been tolled from the time the class action proceedings were commenced:

… [T]he plaintiffs, along with 167 members of the proposed classes, moved together for leave to allow those 167 proposed class members to intervene in the action as plaintiffs pursuant to CPLR 1013, on the ground that “when a class action is de-certified, putative members of the de-certified class are given the opportunity to intervene into the case because of their allegations of common questions of law and fact.” The plaintiffs and the proposed intervenors (hereinafter collectively the appellants) alleged that the proposed intervenors owned property in the vicinity of BNL in 1996 and after, and presented common questions of law and fact with respect to loss of property values, and the cost of using municipal water instead of well water. They submitted a third amended complaint in support of their motion. * * *

… [T]he causes of action of the proposed intervenors are all based upon common theories of liability and, thus, satisfy the requirement of CPLR 1013 that their causes of action involve common questions of law or fact. Contrary to the Supreme Court’s conclusion, BNL would not be faced with a “plethora of new claims.” Moreover, BNL did not demonstrate that intervention would substantially prejudice any party, or cause undue delay … .

To the extent BNL argues, as an alternate ground for affirmance , that the claims of the proposed intervenors are time-barred, this contention is without merit. The statute of limitations applicable to this toxic tort action is the three-year statute of limitations pursuant to CPLR 214-c, which runs from the date of discovery or the date when the injury should have been discovered through the exercise of due diligence … . In American Pipe & Constr. Co. v Utah (414 US 538, 553), the United States Supreme Court held that, under the federal class action rule, commencement of a class action suit tolls the running of the statute of limitations for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status. New York courts have adopted this rule … . Osarczuk v Associated Univs., Inc., 2015 NY Slip Op 05653, 2nd Dept 7-1-15

 

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